In 20/20 Communications, Inc. v. Crawford, the U.S. Court of Appeals for the Fifth Circuit recently ruled that the question of whether a dispute can be arbitrated on a class-wide basis is a threshold issue that is presumptively for a court, not an arbitrator, to decide. This is the latest in a series of decisions by the Supreme Court of the United States and courts of appeals in favor of arbitration agreements that waive class procedures.
On August 6, 2019, in State of Texas v. Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission (EEOC) overstepped its limited rulemaking and enforcement power when it issued its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
On July 30, 2019, a lawsuit was filed in the U.S. District Court for the Eastern District of Texas seeking to enjoin the City of Dallas’s paid sick leave ordinance, which is set to take effect on August 1, 2019.
On July 24, 2019, a Bexar County district court judge entered an order delaying the implementation of the San Antonio paid sick leave (PSL) ordinance from its current August 1, 2019 date to December 1, 2019. The order represented a compromise between the City of San Antonio and a coalition of San Antonio business groups that filed suit against the city on July 15.
The Texas Legislature’s 86th session adjourned on May 27, 2019, and there is little likelihood that the governor will call a special session. The legislature primarily focused on educational reforms this year. Regarding employment matters, most observers expected the legislature to adopt laws preempting any attempt by municipalities to pass paid sick leave laws. While the legislature failed to pass any such law, they did pass other laws impacting the employer-employee relationship.
Despite broad-based support, the Texas Legislature failed to pass a law preempting the type of paid sick leave ordinances enacted in Austin, San Antonio, and most recently Dallas before the end of its regular session on May 27, 2019. While a Texas court of appeal enjoined implementation of Austin’s paid sick leave ordinance and later ruled it unconstitutional, no litigation has been filed concerning the San Antonio and Dallas ordinances. Accordingly, companies with employees in San Antonio and Dallas may want to review their current policies to ensure compliance with these ordinances, both of which will take effect for most employers on August 1, 2019.
On April 24, 2019, the Dallas City Council passed an ordinance requiring employers to provide paid sick leave beginning as early as August 1, 2019. Dallas is the third Texas city (after Austin and San Antonio) to pass such an ordinance.
In 2018, the city councils in both Austin and San Antonio passed ordinances to require employers to provide paid sick leave to employees. The ordinances have faced legal challenges, including a ruling in November 2018 that the Austin law is unconstitutional due to preemption by the Texas Minimum Wage Act. Neither ordinance has taken effect to date. Now the state senate has taken up the matter.
The acronym SLAPP stands for “Strategic Lawsuit Against Public Participation.” A SLAPP lawsuit seeks to chill, dissuade, or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances.
The issue of whether workers who utilize online digital platforms to obtain business and deliver services to third parties are employees or independent contractors has already been subject to much debate and litigation. In the growing gig economy, questions surrounding these issues can create uncertainty for both businesses and gig workers.
Texas law allows for the enforcement of covenants not to compete that impose reasonable restrictions on competition.
In 2019, a number of states’ minimum wage rates will increase.
On November 16, 2018, the Third Court of Appeals in Austin, Texas, entered a temporary injunction blocking the implementation of the paid sick leave ordinance that the Austin City Council passed in February 2018.
On August 16, 2018, the San Antonio City Council voted 9 to 2 to adopt a paid leave ordinance which will require all employers in San Antonio to provide paid leave to their employees. The ordinance requires employers to provide paid leave to be used for specified reasons for employees’ and their family members’ health-related issues.
Courts have ruled that employees who work with clients with diminished capacity present different challenges when establishing whether the nonemployee’s alleged harassment affected the terms and conditions of the employee’s employment. But where is the line on what can constitute actionable harassment when the alleged harasser is a nonemployee with diminished capacity?
The ecclesiastical abstention doctrine can provide religious institutions with protection from employment-related lawsuits. Based upon the religious freedom amendments contained in the U.S. and Texas constitutions, this doctrine generally bars courts from adjudicating disputes related to the governance and operations of religious institutions.
In Wolf v. Lowe’s Companies, Inc., No. 4:16-CV-01560 (March 13, 2018), United States District Judge Alfred H. Bennett of the Southern District of Texas granted Lowe’s motion for summary judgment on a former sales employee’s claims under the Americans with Disabilities Act (ADA) for disability discrimination and failure to accommodate, as well as her claim under the Family and Medical Leave Act (FMLA) for retaliation.
The Fifth Circuit Court of Appeals affirmed the U.S. District Court for the Western District of Louisiana’s grant of summary judgment under the Louisiana whistleblower law, Louisiana Revised Statutes section 23:967, in favor of an employer that transferred an employee to a less desirable location after revealing concerns about her employer’s handling of a diabetic student.
In the early hours of February 16, 2018, the Austin City Council passed a new ordinance on earned sick time that affects employers in Austin, Texas. The ordinance will not take effect until October 1, 2018, and is likely to be challenged in court almost immediately. Nevertheless, local employers should be aware of the basic requirements of the law so that they can prepare for the possibility of enforcement this fall. Likewise, employers in other cities should keep informed on this issue as sick leave laws are becoming more prevalent across the country.
In Delaronde v. Legend Classic Homes, Ltd., No. 17-20027 (January 18, 2018), the Fifth Circuit Court of Appeals affirmed a district court’s denial of an employer’s post-verdict motion for judgment as a matter of law, finding that the jury had been presented with sufficient evidence to conclude that sex discrimination had motivated the transfer of a female sales associate for a Houston-area home builder from a successful community where she had achieved more than $3 million in sales to a very challenging community where the home prices were the lowest of any of the builder’s properties.
As the new year quickly approaches, it is a good time to review your company’s handbook and policies. One important issue to look for is whether your arbitration agreement is part of the handbook.
On August 31, 2017, the U.S. Equal Employment Opportunity Commission (EEOC) in Dallas filed a federal lawsuit in the Eastern District of Texas, Sherman Division, against Denton County, Texas, alleging violations of the Equal Pay Act with regard to Denton’s compensation of two physicians in the county health department.
The Fifth Circuit Court of Appeals recently affirmed the dismissal of a Title VII retaliation claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim where the plaintiff premised her retaliation claim on her earlier filing of an internal complaint of harassment based on a single allegedly offensive text message.
If weather reports are accurate, by the time it makes landfall, Hurricane Harvey stands to be the first major storm to hit the United States in more than 10 years. Harvey, which as of this writing is a category three storm in the Gulf of Mexico, is expected to make landfall on Texas’s central coast late on Friday, August 25, 2017, or Saturday, August 26, 2017.
Texas courts interpreting Chapter 21 of the Texas Labor Code generally attempt to interpret it consistently with federal anti-discrimination laws and frequently look to federal court decisions for guidance. However, differences do exist between Texas and federal anti-discrimination laws. One recent case explored the differences between Chapter 21 and the Americans with Disabilities Act (ADA) related to claims for release of confidential health information.
On March 15, 2017, in Moss v. Harris County Constable Precinct One, the Fifth Circuit Court of Appeals reaffirmed that an employer is not required to accommodate an employee who is requesting indefinite leave as a reasonable accommodation. Robert Moss, who was a deputy with Harris County Constable Precinct One for 16 years, claimed he had been wrongfully discharged in 2013 while on leave following back surgery. Moss claimed his discharge was a result of both his disability and his political speech against then-candidate for constable Alan Rosen.
The Texas Court of Appeals for the Fourteenth District recently reversed and remanded a judgment in favor of an employer on an employee’s claim of retaliation under the Fair Labor Standards Act (FLSA). The court found there to be a genuine issue of material fact as to whether a change in the employer’s stated overtime policy, which was implemented after the employee filed an overtime lawsuit against the employer and applied only to that specific employee, constituted a materially adverse employment action.
The U.S. Court of Appeals for the Fifth Circuit, which covers Texas, Louisiana, and Mississippi, recently found that punitive and compensatory damages are not available for retaliation claims brought under the federal Age Discrimination in Employment Act of 1967 (ADEA). The ADEA already provides for liquidated damages equal to the amount of lost pay and benefits for “willful” age discrimination. The standard for finding a willful violation to award liquidated damages is quite low, resulting in the routine award of what is, in effect, double damages in ADEA cases.
Texas law permits businesses to utilize noncompetition agreements to protect their legitimate business interests in certain circumstances. Companies, attorneys, and the courts generally focus on the consideration that must be exchanged in order for the parties to create a legal, enforceable noncompetition agreement. However, since courts analyze noncompetition agreements under standard contract interpretation principles, the language beyond the exchange of consideration can also be critical to the enforceability of a noncompetition agreement. A recent case from the Court of Appeals of Texas in Texarkana highlights this importance.
Same-sex couples can legally marry, but are they legally entitled to benefits? The Supreme Court of Texas will decide this issue after hearing oral arguments in March of 2017 in Pidgeon v. Turner.